DUMBAULD, District Judge.
Courts have often been criticized for assuming the role of a "superlegislature"
or a "super board of education."
In the case at bar we must essay the further role of arbiter elegantiarum, and become "the glass of fashion and the mould of form," determining what is seemly and comely and acceptable vel non in the matter of masculine juvenile appearance.
What plaintiff (a high school student) claims here is a constitutional right to the preservation and maintenance of his labial hirsute accrescence notwithstanding a provision in the regulations regarding "proper dress" applicable to his school that "Beards and mustaches are not acceptable for male students." (Ex. 1).
Acting in these matters "not by authority of our competence but by force of our commissions,"
we must also bear in mind the prudent Yankee admonition of Chief Justice Stone that "Courts are not the only agency of government that must be assumed to have capacity to govern"
and must resist the current temptation for the courts, whenever there is an unsolved social problem, an unremedied evil, or a blow to be struck for a good cause, to rush in where Congress, the Executive, or the appropriate agencies of local government fear to tread.
Before considering the legal theories advanced, it will be helpful to summarize the facts.
Darius Lovelace, a high school senior eighteen years old on August 11, 1969, of a very presentable appearance and pleasant disposition, has been suspended from school by virtue of his alleged infraction of the above-quoted provision of the leechburg Area High School fashion code, embodied in the Student Handbook. The testimony is not clear as to the date or authorship of said provision, but it has been in force since before the incumbency of the current school administrators, and may have been approved by a student council when adopted. At any rate it has been approved and adopted and enforced against plaintiff by authority of the incumbent school board through its duly delegated high school principal and supervising principal, and by vote of the board itself at two meetings.
The alleged mustache is barely perceptible, and according to the testimony of plaintiff and his parents is of purely natural growth. He has never shaved or trimmed it. There was some indication in defense testimony that at the board meeting it was more noticeable than at the trial, but school photographs of plaintiff for sophomore, junior, and senior year show no appreciable difference. A published photograph from the local Leechburg newspaper in connection with an article about the litigation does not affect our appraisal of the labial hirsute accrescence, which we find to be a natural growth, not artificially cultivated or intentionally manipulated so as to attract attention or constitute a bizarre or impressive spectacle.
Plaintiff's father testified that he had advised plaintiff (and also an older brother) not to shave, for the reason that once the practice of shaving was begun it would have to be continued perpetually. While no medical testimony of a dermatologist (or whatever the appropriate specialty may be) was offered in support of this admonition, it seems sufficiently in accord with general popular knowledge to be accepted as a reasonable basis for plaintiff's personal hygiene habits and practices.
We therefore conclude that the present litigation regarding plaintiff's aforesaid libial hirsute accretion is a genuine, bona fide case or controversy, arising normally out of the circumstances, and not fermented for the purpose of litigiousness. Although in the testimony a Mr. Moore of the NAACP and a lawyer from the ACLU
were peripherally mentioned, we are satisfied that no quasi-barratrous solicitation of a client to permit his name to be used as a litigant has occurred here, as seemingly may have happened in connection with the school prayer case of the Albert Gallatin school district in Fayette County which was recently before Judge Rosenberg.
Continuing with the narration of the facts, it appears from the evidence that the first occasion for concern about student mustaches at the Leechburg school occurred when a white boy named Michael Bond, aged 14 or 15, in the ninth grade, appeared with a mustache. The student's attention was called to the pertinent portion of the fashion code, which was further explained to the boy's father when he got in touch with the principal. The father had his son take it off.
The most spectacular case was that of Ed Sluko, 17 years old, a senior, white, who cultivated an unusual looking beard combined with a mustache. It had a different appearance on each side of his face. He removed it the next day, after the principal had called his attention to the fashion code. Sluko's mustache did cause disruption in the school, attracted attention and evoked comment among pupils.
Danny Berger, white, was also observed by the principal sporting a very noticeable well-cultivated mustache, and he shaved it off.
Plaintiff was the next instance. As was true of all except Berger, he was reported to the principal by the truant officer (in modern terminology, "Home and School Visitor"), Mr. Hammond, who is also a teacher of Industrial Arts.
Finally, and subsequently, Eugene Whiting, black, 17, a tenth grade student, had a clearly defined, purposely cultivated mustache which he shaved off the next day after the principal admonished him.
Elaborating the details of plaintiff's encounter with the educational establishment, we note that it was on January 16, 1970, that the principal, William Carroll, was notified by Mr. Hammond of plaintiff's alleged infraction of the fashion code. Plaintiff informed Carroll that it was his parent's policy that he should not shave.
The next morning, at 7:30 a.m., plaintiff's father, Jesse Lovelace, called Carroll at his home by telephone, to talk about the mustache, and explaining the family policy.
Concerning this conversation, the two participants give slightly divergent versions. Lovelace says Carroll said there would be no problem. Carroll says he said he would check further to determine whether the matter was one where he had discretionary authority to grant a dispensation from the usual standard. (In that connection, he refers to the fashion code provision on slacks for girls, which are forbidden "at school or school activities unless the activities call for this informal dress," virtute cujus slacks have been permitted during exceptionally cold weather.)
On January 18th Carroll became convinced that the regulation was so written that he had no discretionary authority with respect to beards and mustaches, and on the 19th he wrote to plaintiff's father (Ex. A):
Enclosed is a copy of the school policy concerning mustaches and beards. This policy is presently in effect for all male students in the High School.
Since you have an objection to this policy, I feel that we should have a personal conference so that I might explain the purpose of the above mentioned policy.